In an order issued January 31, 2012, Judge Carol K. McGinley of the Lehigh County Court of Common Pleas ruled that a judgment of non pros issued against the plaintiff in the case of Freed v. St. Luke’s Hospital, et al., was proper, thereby denying plaintiff’s motion to strike the same.

In Freed, plaintiff filed a complaint on February 15, 2011, wherein she alleged that defendants, St. Luke’s Hospital and an attending gastroenterologist, were negligent in the performance of a colonoscopy procedure on October 27, 2008. On March 18, 2011, as no certificate of merit had yet been filed, defendants served a notice of intention to enter judgment of non pros. Thereafter, on March 23, 2011, plaintiff filed her certificates of merit against defendants. Defendants then filed a motion to strike the certificates of merit and to enter judgment of non pros on April 19, 2012. Following argument, the court granted defendants’ requested relief and entered judgment of non pros on June 13, 2011.

On August 11, 2011, plaintiff filed a petition requesting that the court strike the judgment of non pros, arguing that the judgment was improper with regard to both procedure and merit.

With regard to the alleged procedural error, plaintiff claimed that under Pa.R.C.P. 1042.3 and 1042.7, a judgment of non pros may only be entered by the prothonotary via praecipe when a plaintiff fails to file a certificate of merit in a timely manner. Notwithstanding this argument, the court noted that because plaintiff had failed to raise any objection to the court’s authority to strike the certificates of merit when the issue was initially contested, plaintiff had consequently “waived any objection to the procedural propriety of such an order.”

As to the merits of the court’s decision to enter the judgment of non pros, the court turned its focus to the content of the certificates and their supporting documentation. Following plaintiff’s filing of her certificates of merit against defendants, plaintiff provided defendants with several expert reports, all of which were authored by the same expert physician. Notably, plaintiff’s expert was board certified in physical medicine and rehabilitation, but not in gastroenterology. Nonetheless, in his reports, plaintiff’s expert claimed that while he himself had never performed a colonoscopy, he was “familiar with the colonoscopy procedure” from his own “observation and knowledge.”

Under Rule 1042.3, the court noted that the certificates of merit filed in a medical malpractice action must be submitted by an “appropriate licensed professional.” According to the court, in order to qualify as such, plaintiff’s expert would be required to meet the qualifications enumerated under Section 512 of the MCARE Act. See 40 P.S. 1303.512. Of the applicable MCARE qualifications, the court noted one in particular in which the expert must “practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care at issue.” 40 P.S. 1303.512(b).

Taking heed of the differences between the subspecialties of the defendant gastroenterologist and the plaintiff’s expert, the court determined that the latter individual did not qualify as an “appropriate licensed professional” under the Pennsylvania Rules of Civil Procedure. Notably, the court rejected plaintiff’s argument that her expert could satisfy the applicable MCARE requirements given that he possessed the “sufficient training, experience, and knowledge” enumerated under MCARE Section 512(e). 40 P.S. 1303.512(e). According to the court, because such experience and knowledge were based solely on observation of the colonoscopy procedure, plaintiff’s expert could not satisfy the “catch-all” provision of MCARE Section 512, and as a result, the expert failed to qualify as an appropriate licensed professional for the purposes of filing certificates of merit.